PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
CLINT BOLICK; ROBIN B. HEATWOLE;
DRY COMAL CREEK VINEYARDS, a
Texas Corporation; HOOD RIVER
VINEYARDS, an Oregon Sole
Proprietorship; MIURA VINEYARDS, a
California Limited Liability
Company,
Plaintiffs-Appellees,

v.
VERNON M. DANIELSON, Chairman,
Virginia Department of Alcoholic
Beverage Control; WARREN BARRY,
Commissioner, Virginia Department
of Alcoholic Beverage Control;
ESTHER M. VASSAR, Commissioner,
Virginia Department of Alcoholic
Beverage Control,
Defendants-Appellants,

and
VIRGINIA WINE WHOLESALERS
ASSOCIATION, INCORPORATED,
Intervenor-Defendant,
MARTHA BLEVINS BRISSETTE,
Amicus Curiae,
STATE OF MICHIGAN; WINE & SPIRITS
WHOLESALERS OF AMERICA,
INCORPORATED; NATIONAL
ASSOCIATION OF BEVERAGE RETAILERS;

No. 02-1367

BOLICK v. DANIELSON

AMERICAN BEVERAGE LICENSEES;

NATIONAL BEER WHOLESALERS
ASSOCIATION; COALITION OF LICENSED
BEVERAGE ASSOCIATIONS; PRESIDENTS
FORUM OF THE BEVERAGE ALCOHOL
INDUSTRY; NATIONAL ALCOHOL
BEVERAGE CONTROL ASSOCIATION,
INCORPORATED; NATIONAL
CONFERENCE OF STATE LIQUOR
ADMINISTRATORS,
Amici Curiae in support of
Appellants,
VIRGINIA WINERIES ASSOCIATION;
JAUNITA SWEDENBURG; DAVID LUCAS;
THE LUCAS WINERY; SWEDENBURG
WINERY; FAMILY WINEMAKERS OF
CALIFORNIA; COALITION FOR FREE
TRADE,
Amici Curiae in support of
Appellees,

and
VIRGINIA VINEYARDS ASSOCIATION,
Movant.

BOLICK v. DANIELSON

CLINT BOLICK; ROBIN B. HEATWOLE;

DRY COMAL CREEK VINEYARDS, a
Texas Corporation; HOOD RIVER
VINEYARDS, an Oregon Sole
Proprietorship; MIURA VINEYARDS, a
California Limited Liability
Company,
Plaintiffs-Appellees,

v.
VERNON M. DANIELSON, Chairman,
Virginia Department of Alcoholic
Beverage Control; WARREN BARRY,
Commissioner, Virginia Department
of Alcoholic Beverage Control;
ESTHER M. VASSAR, Commissioner,
Virginia Department of Alcoholic
Beverage Control,
Defendants,

and
VIRGINIA WINE WHOLESALERS
ASSOCIATION, INCORPORATED,
Intervenor-Appellant,
MARTHA BLEVINS BRISSETTE,
Amicus Curiae,
STATE OF MICHIGAN; WINE & SPIRITS
WHOLESALERS OF AMERICA,
INCORPORATED; NATIONAL
ASSOCIATION OF BEVERAGE RETAILERS;
AMERICAN BEVERAGE LICENSEES;
NATIONAL BEER WHOLESALERS
ASSOCIATION; COALITION OF LICENSED

No. 02-1368

BOLICK v. DANIELSON

BEVERAGE ASSOCIATIONS; PRESIDENTS

FORUM OF THE BEVERAGE ALCOHOL
INDUSTRY; NATIONAL ALCOHOL
BEVERAGE CONTROL ASSOCIATION,
INCORPORATED; NATIONAL
CONFERENCE OF STATE LIQUOR
ADMINISTRATORS,
Amici Curiae in support of
Appellant,
VIRGINIA WINERIES ASSOCIATION;
JAUNITA SWEDENBURG; DAVID LUCAS;
THE LUCAS WINERY; SWEDENBURG
WINERY; FAMILY WINEMAKERS OF
CALIFORNIA; COALITION FOR FREE
TRADE,
Amici Curiae in support of
Appellees,

and
VIRGINIA VINEYARDS ASSOCIATION,
Movant.

Appeals from the United States District Court

for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-99-755)
Argued: January 22, 2003
Decided: May 23, 2003
Before NIEMEYER, LUTTIG, and TRAXLER, Circuit Judges.

Vacated and remanded for further proceedings by published per

curiam opinion.

BOLICK v. DANIELSON

COUNSEL
ARGUED: Ernest Gellhorn, LAW OFFICE OF ERNEST GELLHORN, Washington, D.C.; William Eugene Thro, CHRISTOPHER
NEWPORT UNIVERSITY, Newport News, Virginia, for Appellants.
Daniel Roy Ortiz, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Charlottesville, Virginia, for Appellees. ON BRIEF: William
H. Hurd, George W. Chabalewski, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia; Walter A. Marston,
Jr., REED SMITH, L.L.P., Richmond, Virginia; George E. Kostel,
REED SMITH, L.L.P., Falls Church, Virginia, for Appellants. Matthew S. Hale, Newport News, Virginia, for Appellees. Martha Blevins
Brissette, Richmond, Virginia, Amicus Curiae. Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Irene
M. Mead, Assistant Attorney General, MICHIGAN DEPARTMENT
OF ATTORNEY GENERAL, Lansing, Michigan, for Amicus Curiae
Michigan. Louis R. Cohen, C. Boyden Gray, Scott A. Shepard, WILMER, CUTLER & PICKERING, Washington, D.C.; M. Craig Wolf,
WINE & SPIRITS WHOLESALERS OF AMERICA, INC., Washington, D.C., for Amici Curiae Wholesalers, et al. James M. Goldberg, GOLDBERG & ASSOCIATES, P.L.L.C., Washington, D.C.,
for Amici Curiae Beverage Control Association, et al. Mark B.
Rhoads, Dana J. Finberg, MCCANDLISH HOLTON, P.C., Richmond, Virginia, for Amicus Curiae Virginia Wineries. William H.
Mellor, Steven M. Simpson, INSTITUTE FOR JUSTICE, Washington, D.C., for Amici Curiae Swedenburg, et al. Tracy S. Carlin,
FOLEY & LARDNER, Jacksonville, Florida; Kevin M. Fong,
PILLSBURY WINTHROP, L.L.P., San Francisco, California, for
Amici Curiae Winemakers, et al.

OPINION
PER CURIAM:
The plaintiffs, two Virginia wine and beer consumers and wineries
based in Texas, California, and Oregon, commenced this action
against officials of the Commonwealth of Virginia, challenging the
constitutionality of Virginias Alcoholic Beverage Control ("ABC")

BOLICK v. DANIELSON

laws, Va. Code 4.1-100 et seq., which prohibit the importation of

wine and beer into Virginia except through a regulated, multi-tiered
structure. The plaintiffs alleged that portions of these laws, even
though adopted ostensibly pursuant to the Twenty-first Amendment,
are unconstitutional by virtue of the dormant Commerce Clause, principally because they favor local wine and beer manufacturers, who
are permitted to sell directly to consumers, and discriminate against
out-of-state wine and beer manufacturers, who must sell through the
more costly multi-tiered structure. The plaintiffs also alleged that the
Virginia law allowing State-run ABC stores to sell only Virginia farm
wines similarly violated the dormant Commerce Clause. The plaintiffs sought a declaration of unconstitutionality and prospective
injunctive relief.
The district court held that Virginias ABC laws unconstitutionally
discriminated against out-of-state wine and beer manufacturers and
sellers and were not saved by the Twenty-first Amendment. Bolick v.
Roberts, 199 F. Supp. 2d 397, 417 (E.D. Va. 2002). Accordingly, the
court declared unconstitutional, and enjoined the enforcement of, Virginia Code 4.1-103(1); 4.1-119(A); 4.1-207(2), (4), (5); 4.1208(3), (6), (7), (8); 4.1 209(A)(2), (5); 4.1-302; 4.1-303; and 4.1310(B), (C), which functioned together to prohibit the direct shipment
of wine and beer from out-of-state sellers while simultaneously authorizing the direct shipment to consumers of in-state wine and beer and
allowing State-run ABC stores to sell only Virginia farm wines. Id.
Since this case was argued, the Virginia legislature enacted bills
H.B. 1652 and S.B. 1117, which the governor signed into law on
April 9, 2003. These statutes modify portions of some of the statutes
that are subject to this appeal and, therefore, as Virginia contends,
render moot portions of this case. Virginia also points out that these
new statutes alter the arguments and analysis necessary for the disposition of the remainder of the case.
Because the relief that plaintiffs seek is only prospective, the recent
statutory enactments change the circumstances on which the district
courts opinion was based and therefore alter the issues presented to
us for decision on appeal. Accordingly, we vacate the district courts
order and remand this case for reconsideration of plaintiffs challenges in light of the recent statutory enactments and in light of

BOLICK v. DANIELSON

Beskind v. Easley, No. 02-1432, ___ F.3d ___ (4th Cir. Apr. 8, 2003),
which we decided recently.
VACATED AND REMANDED FOR FURTHER PROCEEDINGS